Monday, 09 October 2017 15:04

Controversy Over Constitutional Reforms and Gains That Need to be Protected - Jehan Perera

The government has proposed that the report of the steering committee on constitutional reform will be debated in parliament at the end of the month. A member of the Steering Committee spearheading the constitutional reform project, Dr Jayampathy Wickramaratne said that the Constitutional assembly would take up proposals over a three-day period beginning October 30. Finalisation of the process would depend on the outcome of three day talks, Dr. Wickramaratne said, explaining measures proposed to further strengthen the unitary character of the country. He added that the proposals were also meant to ensure maximum possible devolution without undermining the unitary status of the constitution. Since its appointment by the constitutional assembly in April 2016 the steering committee has met on 73 occasions.

The large number of meetings that have taken place is a positive expression of the commitment of the political parties to the constitutional reform process. All parties in parliament with the exception of the ultra Sinhala nationalist National Freedom Front have chosen to remain within the process. The participants have included members of the Joint Opposition who have been implacably opposed to the government but continue to attend the steering committee meetings. As TNA and opposition leader R Sampanthan has said, “No Constitution has thus far been framed for Sri Lanka on the basis of a substantial bipartisan consensus amongst its different people in particular the Tamil people , or on the basis of such bi-partisan consensus between the two main parties and other political parties. The present exercise in Constitution making presents the first such opportunity. “

However, the constitutional reform process continues to remain on slippery soil and is not grounded in the consciousness of the people as necessary for the country. There is also a lack of awareness about some of the key and emotive issues in the constitutional reform process. These include uncertainty about the meaning of the unitary state and the foremost place given to Buddhism under the present constitution. The steering committee has explained that “The classical definition of the English term “unitary state” has undergone change. In the United Kingdom it is now possible for Northern Ireland and Scotland to move away from the union. Therefore, the English term “Unitary State” will not be appropriate for Sri Lanka. The Sinhala term “aekiya raajyaya” best describes an undivided and indivisible country. The Tamil language equivalent of this is “orumiththa nadu”.

The issue of whether Sri Lanka should remain unitary in its constitutional structure has traditionally been the line of division between the Sinhala and Tamil polities. The question has been whether Sri Lanka should be a country where a single government dominates, or move towards a federal system in which central and devolved governments can coexist at different levels. Several political parties that have been participating in the steering committee have presented their own alternative formulations as separate attachments to the main report. The SLFP as one of the two main political parties that are in coalition has its own alternative formulations, but in perusing them the seriousness of the challenge awaiting consensual constitutional reform can be seen.

The SLFP position on the unitary state is to stay with the present formulation. It says “The Republic of Sri Lanka is a Unitary State– In the Tamil Language and the English language the word ‘unitary’ shall be used and shall carry the interpretation of the word of the Sinhala Language.” This means that this basic issue of the nature of the state and the method of power sharing still remains to be addressed. It may be in recognition of this problem that Prime Minister Ranil Wickremesinghe has said that minority parties are ready to consider retention of the unitary status of the country in the proposed new constitution and foremost place to Buddhism in case the two major political parties, the UNP and the SLFP agree to grant maximum possible devolution, create a Senate, protect human rights protection of all communities, ensure judicial independence and resettle of those displaced due to the conflict as mentioned in the first chapter of the interim report on the new constitution.

Another area in which there is no consensus is with reference to the foremost place given to Buddhism in the constitution. On this matter, the steering committee report gives two alternative formulations. One is to retain the provision in the present constitution. The other is to modify it by adding to it the need to honour and respect all religions and not to discriminate against them. Some of the country’s leading Buddhist monks belonging to the Buddha Sasana Karya Sadhaka Mandalayala have said that in the existing constitution, Article 9 says that the “Republic of Sri Lanka” shall ensure that Buddhism enjoys the foremost place among all religions, but in the draft of the new constitution, it is stated that “Sri Lanka” will protect the foremost place given to Buddhism. They point out “The removal of the term ‘Republic of Sri Lanka’ will necessarily do away with the State’s responsibility to give Buddhism the foremost place.”

The Buddhist monks have also objected to the addition of the provision that the State will not “discriminate” between religions. “It is impossible to give Buddhism the foremost place without treating other religions differently. It is obvious that this is an attempt to alter the meaning of Article 9 which gives Buddhism the foremost place”. In addition they have argued that the Interim Report of the Steering Committee drafting a new constitution for Sri Lanka has, within it, the seeds of separatism. They expressed their “deepest disappointment” that the 13th Amendment to the constitution enacted in 1987 as a follow up of the India-Sri Lanka Accord, has been retained. The leading Buddhist monks fear that devolution of power over land and police permitted by the 13th Amendment will led to secession of the Tamil-speaking North and East.

Obtaining bipartisan political consensus on the nature of the state and foremost place for Buddhism is important as both of these are entrenched clauses in the constitution which will require approval by the people at a referendum if they are to be changed. If there is no UNP-SLFP consensus on these two issues victory at a referendum will be next to impossible. The Joint Opposition has proven skills in mobilizing Sinhala nationalism. Even if the UNP-SLFP consensus is obtained, victory at a referendum will be difficult unless the Joint Opposition is also brought on board. This too will be next to impossible unless the prevailing clauses pertaining to the unitary state and foremost place to Buddhism are maintained.

A public opinion survey carried out by the Centre for Policy Alternatives earlier this year showed a strong commitment to the unitary state by those who were polled with only 11 percent saying they wanted the unitary state taken out of the constitution. Similarly only 15 percent wanted the foremost place to Buddhism to be taken out of the constitution. This suggests that any constitutional reform that seeks to weaken these two concepts can trigger off widespread opposition from the Sinhala majority that can destroy the prospects for any constitutional reform that requires the approval of the people at a referendum. It would be a tragedy if the unique opportunity that has arisen for justice and reconciliation through the UNP-SLFP coalition government should fail due to the use of words and phrases that bring out primeval fears.

What matters now, and will always matter, are actual practices and deeds on the ground that ensure that all communities feel that they belong to the country and all individuals have confidence they will be treated equally and fairly regardless of their religion or ethnicity. The past two years of the UNP-SLFP government have been better in this respect than the years that came before. This is the gain that needs to be protected first and foremost.